EDITORIAL: The NSA Under a Microscope

12/23/2013, 3 p.m.

Screenshot of Edward Snowden, taken from video by The Guardian (guardian.co.uk)

Whether you consider Edward Snowden a hero or a traitor, his revelations about the inner workings of the National Security Agency (NSA) has turned the super-secretive agency on its head.

Snowden, a former NSA contractor, walked away from the agency with what NSA brass now admits is at least 1.7 million files. Over the past several months, the world has learned more about the National Security Agency that it wanted them to know.

It spied on foreign leaders, aid agencies, allies and dissenters in this country and the NSA is deeply involved in the targeted U.S. killings in countries including Yemen, Somalia, Pakistan and Afghanistan. The spying on them angered leaders like Dilma Rousseff of Brazil and damaged relations.

The NSA has been using Verizon and other telephone companies to siphon off customers’ calls.

Like a vacuum cleaner, the NSA has been sucking up Americans’ telephone, email, text and other communications data – called “metadata” and placed all of that in a massive database of citizens’ calls. The random collection of this information is ostensibly to track, monitor and catch terrorists. The NSA has been doing so even though most of us in this country aren’t terrorists, will never be, and pose no threat to the United States.

Yet the NSA sees fit to intrude into every aspect of our lives.

Of course, politicians have a tendency to feel that they know what’s best for us, tell the public what’s good for them and what they need. Not surprisingly, President Obama, national security officials and others in government, have been on a charm offensive since the Snowden leaks began, trying to soothe us, telling us that this massive invasion of privacy by the NSA is necessary to keep us safe. At the same time, they’ve insisted that everything they were doing was constitutional.

However, just this past week, U.S. District Judge Richard Leon, in a somewhat caustic ruling, described the scope and reach of the NSA’s programs as “Orwellian,” and questioned the constitutionality of the NSA gathering Americans’ telephone records.

Leon noted that the lawsuit filed by conservative activist Larry Klayman has “demonstrated a substantial likelihood of success,” based on the Fourth Amendment’s protection of privacy and prohibition of unreasonable searches.

“I cannot imagine a more ‘indiscriminate’ and ‘arbitrary invasion’ than this systematic and high-tech collection and retention of personal data on virtually every single citizen for purposes of querying and analyzing it without prior judicial approval. Surely, such a program infringes on ‘that degree of privacy’ that the founders enshrined in the Fourth Amendment,” Leon asserted.

Leon said the program is so sweeping that capturing billions of telephone records is actually a “dragnet” that intrudes on people’s privacy. The judge disregarded the government’s contention that special needs require it to have easy and warrantless access to any data that could head off a terror plot.

An injunction, that would block the NSA’s ability to collect phone information and orders the government to destroy any of their records that have been gathered, is on hold until a government appeal is heard.

Leon’s ruling has had a chilling effect on the NSA and the Obama administration, both of which are now scrambling to figure out the implications of Leon’s ruling and the possible fallout.

Meanwhile, a panel Obama appointed to review the NSA and its activities delivered its report and Congress is currently debating if it should close the NSA’s bulk collection of phone data or codify it in law.

Early indications are that the White House favors continuing the NSA program. If the president decides to maintain the status quo, he would have squandered an excellent opportunity to restore people’s faith in him and the NSA.